Harender Singh v. GNCT of Delhi and Ors.

12. Furthermore, he stated that, in view of the judgment of the Supreme Court in the case of Bhagwan Lal Arya (supra), the ratio decidendi is applicable to the petitioner to the extent, one occasion of absence due to bad health cannot become the basis of awarding punishment of dismissal or removal.

13. He contended that the order of the Tribunal is in total disregard to the judgment of the Supreme Court in Bhagwan Lal Arya (supra), more specifically paragraph Nos.[7] to 9, wherein the Tribunal has stated as under:-

38. She has also relied upon the judgment in Maan Singh v. Union of India & others, (2003) 3 SCC 464, wherein, the Supreme Court has categorically held that, habitual unauthorised absence on several occasions is a grave misconduct and the penalty imposed upon the appellant was justified.

39. She has also relied upon the judgment of the Supreme Court in the matter of State of Odisha v. Ganesh Chandra Sahoo, 2020 (2) SCC 588, wherein it was held that in the absence of proper prescription or statement that the respondent was under the treatment of concerned doctor who gave the certificate, the High Court of Odisha should not have altered the discharge order which has been upheld by the Tribunal. The Supreme Court further held that mental illness is not a ground which falls under any exception of awarding lesser penalty in such circumstances. The Supreme Court upheld the punishment of discharge.

40. She concluded her submissions by stating that, in the present case the petitioner was an unauthorised absentee as he did not take prior approval from the competent authority or produce his doctor in enquiry proceedings to show that he was not fit for duty and therefore, he could not have joined duty. Rather, he did not produce any Defense Witness in the enquiry. The petitioner’s absence from duty was clearly an act of defiance which is not acceptable from a member of a disciplined force. She also stated that the charge as mentioned is not one incident of unauthorised absence but it involves misconduct, insubordination and indiscipline and therefore, the doctrine of proportionality is not attracted in the present case and the punishment awarded to him is just, legal and valid and also commensurate with his misconduct.

41. Having heard the learned counsel for the parties and perused the record, the short issue which arises for consideration is whether the Tribunal is justified in rejecting the OA filed by the petitioner challenging the findings of the EO dated August 19, 2008, order of the DA dated October 1, 2008 and of the AA dated July 28, 2011. There is no dispute that the punishment of dismissal imposed on the petitioner was pursuant to a departmental enquiry initiated by the respondents on the ground that the petitioner was unauthorisedly absent from duties. The charge which has been framed against the petitioner can be seen from paragraph 2 of the order dated November 20, 2014, is the following: “I, Inspr. Chander Kant, the Enquiry Officer charge you Ct. Harender Singh No. l459/NW that you were transferred from Special Staff to Distt. Lines X-Ray vide this office order No.l6920/40/SIP(PC)/NW dt. 20-10-

2006. You reported your arrival in Distt. Lines vide DD No.50 dt. 23-10-2006. Aggrieved with your transfer from Spl. Staff to Distt. Lines, you got filed a complaint to Jt. CP/NR against your senior officers through your father alleging that his son (you) was threatened to be killed in an encounter by ACP/PG Cell. An enquiry into the matter; was got conducted through ACP/S.Puri which revealed that the allegations leveled by you are false and fabricated and as a tactics to get yourself transferred back to Spl. Staff. Further your departure was made from Distt. Lines/NW to PS Bawana Vide DD No.25 dated 24-10-2006 of Distt. Lines to perform duty at PS Bawana, as per verbal orders of DCP/NWD. You did not report for duty at PS Bawana. Instead one of your brother informed DO/PS Bawana telephonically that you (Ct. Harender) have been admitted in unknown hospital by your father Sh. O.P. Chaudhary and the name of the hospital would be initiated later on. This information was recorded vide DD N0.43-B dated 24-10-06 PS Bawana and a report to this effect was sent to Distt. Headquarters. Since, you had not obtained prior permission to avail the rnedical rest under CCS (Leave Rules), 1972, as such you were directed m undergo 2nd Medical examination at Aruna Asaf Ali Hospital, Rajpur Road, Delhi, vide DCP/NW Office Letter No. 17820-22/SIP(AC)/NWD dated 3-11-06. You were medically re-examined at the given hospital and a report was sent by Dr. R.P.Arya, Dy. Medical Supdt., Aruna Asaf Ali Hospital vide his Letter No.F.21/1/MED/04- 05/AAAGH5231 dated 10-11-06 opining that you, the patient (Ct. Harender) may resume your duty. As such you were found fit to resume duty and supposed to report your arrival either at PS Bawana or at Distt. Lines/NWD. But you did not report for duty at_either of the place and continued to submit medical papers of BJRM Hospital, Jahangir Puri, Delhi through FAX. Since, you had not obtained prior permission of the Competent Authority to avail medical rest and the fact that you were declared fit to resume duty on second medical examination, you were marked absent vide –DD No. 47-B dated 16-11-2006, PS Bawana. An absentee notice vide DCP/NW office No. 18741-43/SIP(AC)/NWD dated 20-11-2006 was issued against you through SHO/Bawana with the direction to resume your duty at once failing which strict departmental action under the provisions of D.P. Act, 1978 will be taken/initiated, against you. A copy of the said notice was duly, served upon you against your proper receipt on 3-12-2006 but instead of joining your duty you recorded your comments on the copy of of absentee notice that medical papers of BJRM Hospital and Hindu Rao Hospital have been sent to DCP/NW Distt. and Jt. CP/NR through FAX. You being a member of disciplinary force were not supposed to comment upon the directions of senior officers and in case you were actually ill you should have obtained prior permission of the Competent Authority as required under prescribed norms/regulations on the subject. You instead of joining duty are still running absent from duty w.e.f. 16-11-2006 at your own volition and in utter violation of Rule-19 of CCS (Leave) Rules, 1972 and S.O. No. 111 /88 of Delhi Police. The above act on the part of you Const. Harender Singh No.1459/NW amounts to grave misconduct, indiscipline, disobedience and insubordination in the discharge of your official duties, which renders you liable for departmental action under the provision of Delhi Police (P&A) Rules, 1980."

42. The charge in substance is that the petitioner who was working as a special staff was transferred to Distt. Lines vide order dated October 20, 2006. He reported his arrival in Distt. Lines on October 23, 2006. Being aggrieved with his transfer, he got a complaint filed with the Joint CP, Northern Range against some senior officers through his father alleging that he has been threatened to be killed in an encounter by ACP / PG Cell. An inquiry in that matter was conducted which revealed that the allegations leveled by his father were false and fabricated and as a tactic to get himself transferred back to Special Cell.

43. Thereafter, he was also transferred to P.S. Bawana. His departure was made from Distt. Lines (North-West) to P.S. Bawana on October 24, 2006 to perform duties in the said police station as per the virtual orders of DCP / NWD. But he did not report to the said police station, instead his brother informed the Duty Officer at P.S. Bawana telephonically that the petitioner has been admitted in an unknown hospital by his father and the name of the hospital would be intimated later. This information was recorded on October 24, 2006 at P.S. Bawana and a report to this effect was sent to the District Headquarters.

44. As the petitioner did not obtain prior permission to avail medical rest / leave, he was directed to undergo another medical examination at Aruna Asaf Ali Hospital, Rajpur Road, Delhi. On reexamination, the concerned Deputy Medical Superintendent, on November 20, 2006 opined the respondent authority that the petitioner is fit to resume / join his duties. Despite being found fit to resume duties, the petitioner did not report at either places and continued to submit medical papers / report of BGRM Hospital, Jahangir Puri, Delhi through Fax.

45. It is noted that, a notice was served upon the petitioner, but instead of joining his duties, he recorded on the notice that the medical papers of BGRM Hospital and Hindu Rao Hospital have been sent to the DCP through fax.

46. The EO submitted a report on August 19, 2008 proving the allegations against the petitioner. The DA passed an order of dismissal on October 1, 2008 and an appeal thereof was also rejected / dismissed.

47. The submissions of the learned counsel for the petitioner primarily are the following: i. The inquiry report does not reveal any reasons / finding, to prove the charges against the petitioner. ii. The petitioner had taken prior permission for medical leave. iii. Merely because medical examination has been directed, the authorities cannot direct the petitioner to resume his duties. Even otherwise it cannot be presumed that the petitioner was not ill. iv. The petitioner could not have been transferred to Bawana Police Station by an oral order. v. The charge framed against the petitioner of being absent from November 16, 2006 is without any basis as the same can be verified from DD No. 15 dated December 20, 2006 of District Lines.

48. The plea of the petitioner that, he has been transferred to P.S. Bawana without any written order, may be correct, but the fact remains, despite being privy to such an information, he did not join the at P.S. Bawana. Rather, he made his brother inform the P.S. Bawana that, his father has admitted the petitioner in a hospital without disclosing any further details. This fact has been noted vide DD entry no. 43-B dated October 24, 2006.

49. In any case, the petitioner could not be absent at either of the places, i.e., P.S. Bawana or the Distt Lines / NWD, where he was transferred from the Special Staff. Instead of reporting to the District Lines / NWD / PS Bawana or to any higher officer, the petitioner remained unauthorisedly absent after October 20, 2006 till the date on which the DA had passed the order of dismissal i.e., September 19, 2008, which clearly reveal that, the petitioner was absent for almost 2 years from his duties without any reason. This fact is clear as DA records his absence from November 16, 2006 to the date of issue of its order, which is after almost two years.

50. In the given background, the order of dismissal of appeal by AA surely cannot be faulted. The Tribunal has rightly distinguished the judgment of the Supreme Court in the case of Bhagwan Lal Arya (supra), on facts inasmuch as in the said case, the Supreme Court has set aside the punishment of dismissal / removal imposed on Bhagwan Lal Arya on the ground, he fell sick during training and was absent for two months and eight days.

51. It is not such a case herein, where the petitioner had fallen sick during the training and was absent for a relatively short period of 2 months and 8 days as was the case in Bhagwan Lal Arya (supra). The very fact that the petitioner remained absent for two years makes the charge grave which rightly resulted in the punishment of dismissal of the petitioner from service.

52. The learned counsel for the petitioner has also relied upon the judgment in the case of Chairman cum Managing Director, Coal India Limited and Anr. (supra) to contend that the scope of judicial review is open on a limited ground of proportionality. The said proposition cannot be disputed but in the facts of this case, the period of unauthorised absence for almost 2 years makes the charge grave, more so when the petitioner is employed in a Police Force as a Constable. In fact, no attempt has been made by the counsel for the petitioner to justify the unauthorised absence for a period of two years.

53. The learned counsel for the petitioner has also relied upon the judgment of the Supreme Court in the case of T.S.R. Subramanian and Ors. (supra) to contend that written orders are necessary for fixing responsibility and ensuring accountability in functioning civil servants and upholding institutional integrity. The Supreme Court was of the view that the civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be protected against wrongful and arbitrary pressure exerted by the administrative superiors, political executive, business and other vested interests. The said proposition cannot be disputed but it is noted that the petitioner was aware of the fact that, he has been transferred to P.S. Bawana as the petitioner’s brother had informed the Duty Officer at P.S. Bawana of his absence on October 24, 2006. In that sense, the petitioner cannot take the plea of non-issuance of order of transfer. Even otherwise, the petitioner could not have remained absent from the place of his posting, that too for two years. The said judgment is clearly distinguishable on facts.

54. In the case of Krushnakant B. Parmar (supra), as relied upon by the learned counsel for the petitioner, the issue was that the appellant therein was charged with willful absenteeism. The question before the Supreme Court was that, if the absence is due to compelling circumstances under which it is not possible to report or perform duty, such absence cannot be held to be willful and employee be deemed guilty of misconduct. In the said case, the appellant was prevented from attending the duty and was not allowed to sign the attendance register. Whereas, in the case in hand, the petitioner failed to join / report his duty even though a notice was served calling upon him to join the duty. Despite the notice, the petitioner remained absent from October 24, 2006 till the order of the DA, October 1, 2008. The said case is clearly distinguishable.

55. The learned counsel for the petitioner has also relied upon the judgment of the Supreme Court in the case of R.K. Sharma (supra). In the said case, the respondent therein, applied for leave and the same was sanctioned by officers who were not competent to do so. The Court held that the respondent merely acted under the faith that the officer in question had the power to approve his request for leave and as such no misconduct can be attributed to the respondent for the period he availed the leave. It is to be noted that the said case was decided under Article 142 of the Constitution of India and is distinguishable on facts and in law.

56. In Shiv Karan Singh (supra), the petitioner therein remained absent for a period of 254 days on medical grounds. The plea of the petitioner therein was that, the absence was not willful but on the ground of his illness and of his mother. The Court held that neither the Disciplinary Authority nor the Inquiry Officer’s case was that the medical reports submitted by the appellant were forged or fabricated. In the case in hand, even after the petitioner had submitted his medical report, a second Medical Board was ordered by the department in which the Deputy Superintendent of Aruna Asaf Ali Hospital had submitted that the petitioner is fit to join / perform his duties. Despite the opinion, the petitioner having not joined the duty, a DE was initiated against the petitioner for his absence from duty and was dismissed from the service.

57. It may be stated here that the Tribunal had earlier dismissed the OA. The Tribunal allowed the review application only on the ground urged by the petitioner that the punishment imposed against him is disproportionate to the misconduct, and reheard the OA. The Tribunal on re-hearing the petitioner on that aspect, has upheld the order of dismissal. We are of the view that the impugned order passed by the Tribunal cannot be faulted even on that ground.

58. Suffice to state, Mrs. Ahlawat is justified in relying upon the judgment of the Supreme Court in the case of State of U.P. & Ors. (supra) wherein it is held as under: “We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that “his absence from duty would not amount to such a grave charge”. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that “the punishment does not commensurate with the gravity of the charge” especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out.” (emphasis supplied)

59. In the case of Maan Singh (supra) the Supreme Court has held as under:

60. In the case of State of Odisha (supra) the supreme court has in paragraphs held as under:

17. In granting relief to the respondent in his writ petition, the High Court should have considered that the respondent was absent from duty for seven long years and he was aware of the discharge order passed against him on 30-12-1993. As regards the plea of mental illness which might have incapacitated the respondent from either reporting for duty or to participate in the disciplinary proceeding, the Court should have borne in mind the failure of the respondent to make himself available before the CDMO to cross-check his pleaded medical condition This was in defiance of the repeated communications addressed to the absentee employee by the Commandant of the Battalion. It is also of significance that neither the Tribunal nor the High Court found any infirmity with the disciplinary proceeding which led to the issuance of the discharge order against the delinquent on 30-12-1993.

18. In the above circumstances, when factual finding was recorded by the Tribunal on fairness of the disciplinary proceeding with due opportunity to the delinquent, the substitution of the penalty of discharge, was not warranted. This is more so as the High Court found support for their decision from Rajinder Kumar [Rajinder Kumar v. State of Haryana, (2016) 15 SCC 693: (2015) 3 SCC (L&S) 143: AIR 2015 SC 3780] where the constable concerned was unauthorisedly absent for 37 days whereas the respondent herein had failed to report back for duty for long 7 years, from 1991 to 1998.

19. If the respondent had actually suffered from cerebral malaria since 3-6-1991 and was subjected to frequent cyclic attack of Maniac Depression Psychosis, as claimed, necessary proof of such suffering from the doctor/hospital concerned who were providing him the treatment, ought to have been produced. Moreover, he never allowed for cross-verification of his pleaded medical condition by presenting himself before the CDMO in 1991 or thereafter. Instead, the respondent only produced the 21-1-1998 certificate of the HoD, Psychiatry who may have had no role in the treatment of the respondent. It therefore appears to be a case of certificate of convenience on the purported symptoms and mental ailment of the respondent from 1991 to 1998, without support of any contemporaneous medical records. Most curiously, the doctor had issued the certificate on the basis of reference made by the local MLA but not on the basis of referral by doctor/hospital which might have been involved with the respondent's treatment during 1991 to 1998.” (emphasis supplied)

61. In view of our findings in the facts of this case, in the absence of cogent reasons for not joining the duties despite being declared fit by the Medical Board for over two years, we are of the view that the impugned action of the respondents and the order(s) of Tribunal are justified. The petition is devoid of merit and is dismissed. No costs.

V. KAMESWAR RAO, J

ANOOP KUMAR MENDIRATTA, J. JULY 12, 2023